Métis and non-status Indians won a major victory this morning with a Federal Court of Canada declaration that they qualify as being “Indians” under the 1867 Constitution Act that set the template for Confederation.
The court declined to go a step further and expressly order the federal government to begin negotiating with Métis and non-status Indians over claims such as health, education and land.
However, Mr. Justice Michael Phelan left little doubt that his judgment will put pressure on the government to negotiate.
”Hopefully, the resolution of the constitutional issue will facilitate resolution on other matters,” Judge Phelan said.
The decision provided a resolution to 13 years of legal wrangling between representatives of the Métis people and the federal government.
Legal experts and Métis activists behind the case believe it is a foregone conclusion that the federal government will appeal the ruling to the Federal Court of Appeal.
Since this decision, too, would almost certainly be appealed to the Supreme Court of Canada, a final answer is likely three or four years away.
With an estimated 400,000 Métis in the country, the costs of extending government programs or negotiating claims are potentially enormous.
The federal government had hoped that the outcome of the case would sharply restrict its authority.
Métis organizations that brought the case hoped that by establishing that they qualify as “Indians” under the Constitution Act, it would establish the fiduciary duty of the federal government to look after their affairs.
In his decision, Judge Phelan examined a broad sweep of historical evidence that established the Métis and non-status Indians were treated in much the same way full-status Indians were.
“The evidence concerning non-status Indians establishes that such persons were considered within the broad class of ‘Indians,’” he concluded.
“The situation regarding Métis was more complex,” the judge said. “Nevertheless, Métis generally and over a greater area were often treated as Indians, experienced the same or similar limitations imposed by the federal government, and suffered the same burdens and discriminations.”
Judge Phelan awarded the Métis plaintiffs the portion of their legal costs which was not already being supplied through a fund for aboriginal court challenges.
He also criticized federal lawyers for putting intense effort into short-circuiting the case, rather than letting it play out in full and result in a decision. Federal arguments suggesting there was no legislative basis upon which to base a challenge were ill-conceived, Judge Phelan said.
“It is no answer for the defendants to say that a case such as this cannot be brought because there is no federal legislation against which to assert an action,” he said. “There is no such legislation because the federal government denies jurisdiction over Métis and non-status Indians.
“This is a classic Catch-22 situation,” the judge added. “It is a situation for which the declaration proceeding is well-suited to resolve.”
Dwight Newman, a University of Saskatchewan law professor, said the case has removed any doubt about whether the federal government has jurisdiction for Métis and non-status Indians.
“The federal government now clearly has constitutional jurisdiction and resulting responsibilities in relation to Métis and non-status Indian communities,” Prof. Newman said.
He said that by refusing to go further, the decision adopted a cautious approach that is sure to engender further litigation fleshing out specific responsibilities and benefits.
“Nonetheless, the decision may itself have dramatic consequences,” Prof. Newman said. “It will open new litigation on the scope of resulting federal responsibilities as well as on the constitutionality of existing provincial arrangements – especially in Alberta. This case may well respond to challenges that existed but it’s going to create a period of many new questions.”
Prof. Newman said in his view, Judge Phelan did not completely erase any practical differences between the way status Indians, and non-status and Métis are treated.
“It is still only status Indians who are under the Indian Act,” he said. “The federal government does have constitutional jurisdiction in relation to non-status Indians but might not exercise it in the same way – though the decision would pressure it to ensure non-status Indians do receive protection as Aboriginal people.”
After Tuesday's decision, this might now be subject to other challenges such as Charter issues, he said.
The bulk of Judge Phelan’s decision involved a detailed examination of historical events and government policies which shed light on how it treated status Indians, non-status Indians and the Métis.
“The canvas over which the parties have painted the answer encompasses Canadian history virtually from the time of Champlain in Passamaquoddy Bay in 1603 to the present day,” he noted.
The mass of testimony and thousands of pages of historical documents and exhibits that he saw persuaded Judge Phelan that the 1867 Constitution Act’s reference to Indians should not be construed narrowly.
“There is no principled reason to make that race-based constitutional jurisdiction more balkanized by emphasis on degrees of kinship nor degrees of cultural purity,” he said. “Indeed…there are Métis who are also registered Indians.
“The recognition of Métis and non-status Indian as Indians under s 91(24) [of the Constitution Act] should accord a further level of respect and reconciliation by removing the constitutional uncertainty surrounding these groups.”
Yet, Judge Phelan was careful to stress that he was not making general statements about the nature of any fiduciary duty the federal government owes to Métis and non-status Indians.
“Given the declaration of right in respect of s 91(24), one would expect that the federal government would act in accordance with whatever duty arises in respect of any specific matter touching on the non-clarified fiduciary relationship,” he said.
Likewise, Judge Phelan made it clear that he expects future cases to determine the extent to which the federal government is obligated to consult with Métis and non-status Indians on policies that may affect their livelihood and rights.
http://www.theglobeandmail.com/news/national/ottawa-has-jurisdiction-over-mtis-non-status-indians-fe...
